Napolitano is off-base on FISA

The opinion piece by former New Jersey Judge Andrew Napolitano, "The Invasion of American Privacy" (Feb. 24 )is irrationally alarmist. He complains that the Foreign Intelligence Surveillance Act (FISA) circumvents the U.S. Constitution's Fourth Amendment requirements of having "probable cause" to believe a crime is, was or is about to be committed before obtaining a court's permission to conduct electronic surveillance.

Judge Napolitano served on the bench in New Jersey for a total of eight years. He has no background in federal law or FISA. He implies that for an FBI agent to obtain a FISA warrant to intercept someone's phone or e-mail communications, the agent simply "appears in front of a secret court and instead of presenting probable cause of a crime in order to obtain a search warrant, would only need to present a probable cause that the target of the warrant was an agent of a foreign government."

Having obtained both criminal and FISA wiretaps during my career with the FBI, I know it requires much more work than what Napolitano hints at. The agent in the field must have good reason to believe a person is an agent of a foreign power or terrorist. That information is run past the local FBI office Legal Counsel.

If the information is accurate, the request is sent to FBI headquarters where it is vetted by the Office of General Counsel. The request then must pass muster by the U.S. Justice Department. Then, and only then, is the FISA request brought before a U.S. District Court judge sitting as a member of the FISA court.

The agent requesting the warrant must certify under penalty of perjury that the significant purpose of the electronic surveillance is to obtain foreign intelligence information. The FBI has neither the manpower nor interest in monitoring anyone in the United States who is not committing criminal acts, plotting terrorist strikes or planning to steal our nation's secrets.

Under Napolitano's theory, the United States should have obtained a warrant to intercept Japanese and German radio communications during World War II.

Judge Napolitano is more television celebrity than wise judicial figure. The Post-Standard should be more selective in picking its experts.